Censorship

For almost as long as artists have been creating art, governments have both supported and censored artists' work. Ancient Athens, the Roman Empire, and the medieval Catholic Church financed many projects, whereas totalitarian regimes, for example, banned many works and repressed artists. The U.S. Congress was reluctant to fund art that might subsequently be construed as national art, or as government-approved art until 1960s activism encouraged it to do so. In 1965, the National Foundation on the Arts and the Humanities was established to foster excellence in the arts. It is composed of two divisions, the National Endowment for the Arts (NEA) and the National Endowment for the Humanities (NEH). Among its many interests, the NEA provides stipends to deserving artists.

Controversy over the role of government support of the arts arose in the late 1980s with two artists who received NEA funding. In 1988, the photographer Andres Serrano received harsh condemnation for his photograph titled Piss Christ, which depicted a plastic crucifix floating in a jar of Serrano's urine. Numerous senators sent letters of protest to the NEA, insisting that the agency cease underwriting vulgar art. A second furor arose in 1989 over the work of another photographer, Robert Mapplethorpe, who received NEA support for his work, which depicted flowers, nude children, and homosexuality and sadomasochism.

Senator JESSE HELMS (R-N.C.) argued the most vociferously against the NEA's choices and introduced legislation to ban funding of "obscene or indecent art" (1989 H.R. 2788 [codified at 20 U.S.C.A. § 953 et seq. (1989)]). The Helms Amendment, adopted in October 1989, gave the NEA great power and latitude to define obscenity and quash alternative artistic visions. To enforce the new amendment, the NEA established

Demonstrators outside the Brooklyn Museum of Art protest Mayor Rudolph Giuliani's threat to withdraw the museum's city funding based on what he felt were offensive works of art in the 1999 Sensation exhibit.
ROMMEL PECSON/CORBIS

an "obscenity pledge," which required artists to promise they would not use government money to create works of an obscene nature. The art world strongly resisted this measure: many museum directors resigned in protest and several well-known artists returned their NEA grants.

Two important cases tested the power of the NEA to censor artistic production. In Bella Lewitsky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (C.D. Cal. 1991), a dance company refused to sign the obscenity pledge and sued on the ground that the pledge was unconstitutional. A California district court agreed that the pledge violated the First Amendment right to free speech and that its vagueness denied the dance company DUE PROCESS under the FIFTH AMENDMENT.

In New School v. Frohnmayer, No. 90-3510 (S.D.N.Y. 1990), the New School for Social Research, in New York City, turned down a grant, claiming that the obscenity pledge acted as PRIOR RESTRAINT and therefore breached the school's First Amendment rights. Before the constitutionality of the prior restraint argument was decided, the NEA released the school from its obligation to sign the pledge.

The NEA abolished the obscenity pledge in November 1990, but in its place instituted a "decency clause" (1990 Amendments, Pub. L. No. 101-512, § 103(b), 104 Stat. 1963 [codified at 20 U.S.C.A. § 954(d)(1990)]), which required award recipients to ensure that their works met certain standards of decency. Failure to comply with this demand could mean suspension of grant payments.

Again the art world protested. In Finley v. NEA, 795 F. Supp. 1457 (C.D. Cal. 1992), artists known as the NEA Four—Karen Finley, John Fleck, Holly Hughes, and Tim Miller—sued the NEA over the decency clause. A California district court agreed with the artists. The Finley court held that the decency clause, like the obscenity pledge, was unconstitutional because its vagueness denied the artists the due process guaranteed by the Fifth Amendment and because its too-general restriction suppressed speech.